Supreme Court dismisses Cree First Nation appeal on duty to consult

Supreme Court ruling on indigenous consultations fractured: Professor

Canadian governments don’t have an explicit duty to consult indigenous groups but must nevertheless adequately weigh their historical rights when developing laws, the country’s top court said.

The Supreme Court of Canada unanimously dismissed a key indigenous rights case Thursday in Ottawa on a question of jurisdiction -- meaning no existing law was struck down. But the nine judges were divided in their views on the details of the subject matter.

While the court ruled that governments have no explicit requirement to consult indigenous communities in drafting legislation, it said they must still act with “honor” or risk seeing their laws struck down. The split decision is the latest to flesh out Canada’s emerging legal landscape on indigenous rights, but it is neither a final step nor a clear road map.

The issue is one that has slowed or quashed development of major Canadian energy projects, including the Trans Mountain pipeline expansion that the federal government purchased from Kinder Morgan Inc. for $4.5 billion. Thursday’s decision essentially gives governments some leeway in developing laws without indigenous consultation, while also saying it’s not a blank check.

“While an aboriginal group will not be able to challenge legislation on the basis that the duty to consult was not fulfilled, other protections may well be recognized in future cases,’’ Justice Andromache Karakatsanis wrote, on behalf of three of the nine judges. “The honor of the Crown binds the Crown” still and “permitting the Crown to do by one means that which it cannot do by another would undermine the endeavor of reconciliation.”

Prime Minister Justin Trudeau’s government agreed to buy the Trans Mountain expansion project earlier this year. In August, the Federal Court of Appeal nullified permits for the project, in part due to a lack of indigenous consultation. The government has re-launched the consultations in a bid to build the expansion anyhow.